Embrace the Fatwa

By Seyed Hossein Mousavian. This article was first published on Foreign policy.

If the United States is serious about negotiating with Iran, it's going to have to start listening to the supreme leader.

As the Western media reported it, the future of U.S.-Iranian nuclear negotiations suffered a major setback on Feb. 7 when Supreme Leader Ayatollah Ali Khamenei seemed to reject Vice President Joseph Biden's offer of direct talks. "Some naive people like the idea of negotiating with America, however, negotiations will not solve the problem," the supreme leader said in a statement posted on his website. "You are pointing a gun at Iran saying you want to talk. The Iranian nation will not be frightened by the threats."

But Ayatollah Khamenei's statement can also be read as an invitation for genuine negotiations -- negotiations that are not conducted in the shadow of increasingly draconian sanctions and that take seriously Iran's legitimate interests and rights. Despite a number of recent encouraging signs -- such as President Barack Obama's nomination of John Kerry and Chuck Hagel for key administration posts -- the nuclear standoff remains deadlocked over the Non Proliferation Treaty (NPT). A major breakthrough is needed. The supreme leader's recent statement notwithstanding, that breakthrough is within reach, though it will require looking beyond the NPT to a fatwa issued by Ayatollah Khamenei in 2003 that bans nuclear weapons and other weapons of mass destruction.

The present diplomatic quagmire is primarily the result of irreconcilable demands. Iran has made clear that resolving the nuclear imbroglio will require international recognition of the country's legitimate right to enrichment under the NPT and the lifting of sanctions. The P5+1 (The five permanent members of U.N Security Council and Germany), meanwhile, have articulated five major demands based on the NPT: 1) implement the so-called Additional Protocol, which enables further intrusive inspections by the International Atomic Energy Agency (IAEA), the U.N.'s nuclear watchdog, including visits to military sites such as Parchin, 2) make the nuclear program more transparent, 3) give access to the IAEA beyond the NPT and its Additional Protocol to address concerns about possible military dimensions to the country's nuclear activities, 4) limit uranium enrichment to 20 percent, and 5) convert to fuel rods or export all enriched uranium stockpiles that are not immediately used for domestic consumption.

These demands go far beyond the NPT, which permits member states to enrich to any level and places no limits on stockpiling enriched uranium. The Additional Protocol, meanwhile, is a voluntary measure that has yet to be accepted by 70 countries. In other words, the inspections demanded of Iran are so invasive that there is currently no international non-proliferation treaty or mechanism that covers them.

Nonetheless, Iranian President Mahmoud Ahmadinejad has reiterated Tehran's readiness to "immediately" stop production of low-enriched uranium at 20 percent as long as the international community agrees to supply the necessary nuclear material for the country -- something it has refused to do in the past. Likewise Iranian Foreign Minister Ali Akbar Salehi has even referenced the Additional Protocol directly as part of an offer to "recognize the concerns of the West and to try to mitigate them using all the possible instruments that are available." Still, two concerns remain

First, the P5+1 may not have the political will to finalize a deal with Iran. According to sources with intimate knowledge of the negotiations, the West's proposal contains neither formal recognition of Iran's right to enrichment under the NPT, nor substantial sanctions relief. Even U.S. officials have privately acknowledged that it's not substantively different than previous proposals that failed.

Second, it is far from clear thatsuch an agreement can be sustained by the Iranians. While I served as the spokesman for Iranian nuclear negotiator under President Mohammad Khatami, our delegationagreed to implement the Additional Protocol from 2003-5. The agreement caused an uproar and prompted some sectors of the government to accuse our team of treason. Thus, commitments advanced by Ahmadinejad's administration that go beyond the NPT and Additional Protocol would be vulnerable to reversal in the future.

Luckily, there is a way out of this quandary. An important and novel proposal was announced publicly by Iranian Foreign Minister Salehi based on Ayatollah Khamenei's fatwa banning nuclear weapons. Last year, Salehi declared that Iran is ready to "translate the fatwa into a secular, binding document that would bind the government to this fatwa" and "to transform it into a legally binding, official document at the U.N." Salehi's proposal presents a legitimate framework to guarantee Iran's commitments beyond the NPT and should be seriously explored as a means to resolve the stalemate. Unlike the NPT, the fatwa has definitive boundaries and offers both parties a politically palatable way to back away from unrealistic demands.

The validity of the fatwa should not be underestimated. Because of the strong bond between religion and politics in Iran, the supreme leader's religious fatwas carry both legislative and religious importance. According to the Iranian constitution, the supreme leader has the ultimate authority over all three branches of government. As such, the fatwa has the status of law and cannot be subject to review of any kind.

One immediate area where the fatwa offers a way around the current deadlock is on the issue of Parchin. Talks between Iran and the IAEA have hit a roadblock over demands to visit the military complex located outside Tehran, with both sides unwilling to back down. Under the fatwa, however, Iran could invite a non-IAEA international team of experts to visit Parchin and present their technical findings. Such an initiative would be voluntary, allowing Iran to break the current artificial deadlock. But it would also increase transparency and allay Western fears about what's going on at the base.

Current negotiations based on the NPT have all but stalled out. But with the fatwa as a potential framework for future talks, a deal may still be within reach -- although it would require the United States to offer more serious incentives. Both Kerry and Hagel are pragmatists, but it remains to be seen if they can reorient U.S. policy from pressure politics that "keeps all options on the table" to an approach that genuinely seeks a resolution to this crisis.

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